WND EXCLUSIVE

Lawyer charges feds admit spying on everyone

Fight escalates over judge's ruling that NSA program unconstitutional

Bob Unruh joined WND in 2006 after nearly three decades with the Associated Press, as well as several Upper Midwest newspapers, where he covered everything from legislative battles and sports to tornadoes and homicidal survivalists. He is also a photographer whose scenic work has been used commercially.

The Obama administration’s insistence on further delaying a court ruling against the National Security Agency’s telephone surveillance program indicates the government actually was spying on “everyone,” charges a brief by the plaintiffs.

The administration is arguing that immediate compliance with an order to remove a few names and phone numbers from its database would effectively require that it shut down the whole program.

“This is absurd,” charged Larry Klayman of Freedom Watch, who sued the NSA over its telephone monitoring programs on behalf of himself and several others.

“Unequivocally, the public’s interest in combating terrorism is of paramount important for the United States and its citizens,” Klayman acknowledged. “But the notion that after being on notice of their constitutional violations and illegal activity for two years, appellants, with arguably (and hopefully) the highest technological supercomputer in the world, have failed to decipher a way to remove a mere two names or phone numbers from the database, first underscores that the database has never truly served its own purpose, and second, confirms the fact that the appellants have indeed been surveilling everyone.”

U.S. District Court Judge Richard Leon found the program likely unconstitutional and ordered the government immediately to stop collecting information from several plaintiffs. The Obama administration went to the U.S. Court of Appeals for the District of Columbia and asked the judges to delay the order.

Klayman on Thursday filed an argument against the administration’s request.

He noted that the judiciary has found that the loss of freedoms, “for even minimal periods of time, unquestionably constitutes irreparable injury.”

“This loss of constitutional freedoms is precisely what has occurred and is continuing to occur here. The only issue before this court prior to a full appeal is whether removing two names or phone numbers from their supercomputer would irreparable harm appellants. The answer is plainly no.”

Continued Klayman, “The appellants’ actions of circumventing the Constitution and violating hundreds of millions of people’s Fourth Amendment and other rights actively contravenes the public interest.”

He pointed out the government has been unable to identify injuries it would suffer from following the court’s order. He said the government “cannot – and should not be able to – rely on the failed argument that it may be burdensome.”

And he pointed out the Obama administration hasn’t shown itself to be trustworthy in the dispute.

“The director of National Intelligence, James Clapper, lied to Congress and the American people on March 12, 2013. ‘Does the NSA collect any type of data at all on millions or hundreds of millions of Americas?’ ‘No sir … not wittingly.’ Even worse, he testified that the Central Intelligence Agency and the NSA only engage in foreign intelligence collection and do not participate – at all – in any intelligence gathering within the domestic United States. None of that is true, as was later learned.”

Klayman said there is “every indication that the appellants continue to believe that the wholesale domestic surveillance of American citizens is appropriate and it is clear that they will covertly continue to do so.”

He said the administration’s “modus operandi is clear: to further delay their obligation to abide by the Constitution and the district court’s orders.”

“This honorable court must see through appellants’ emergency motion and deny it.”

WND reported this week the government apparently was positioning itself to comply with Leon’s order when James Gilligan, a special litigation counsel for the Department of Justice, asked Klayman for the numbers to be excluded from the NSA’s surveillance program.

The program has been in the news since it was exposed by former NSA contractor Edward Snowden, who has sought refuge in Russia.

Gilligan told Klayman: “As you know, the government has sought a stay of the court’s preliminary injunction issued on November 9, 2015. However, if the court’s injunction is not stayed, then in order to comply with the injunction (and without confirming or denying that the government has collected or possesses records of the Little plaintiffs’ calls under the Section 215 bulk telephony-metadata program), the government will require: (1) all telephone numbers and calling card numbers associated with the Little plaintiffs’ telephone subscriptions from November 2010 to the present; and (2) the time frames during which each identified telephone number and calling card was used by the Little pilaintiffs within the relevant period.”

A temporary stay from the appeals court is expected to expire at the time the government’s arguments are filed, probably on Monday.

The NSA has been taking – without permission and, until Snowden’s leak, without consumers knowing – the records of millions of Americans’ telephone calls.

The data includes the telephone numbers and the length of the call.

The program is to be replaced by a new plan from Congress scheduled to begin in just weeks that will have telephone companies keep the metadata and give it to the government on request, according to certain criteria.

Leon originally ruled almost two years ago that the program likely was unconstitutional. He issued a temporary order to stop the program, but it was stayed to allow the government to appeal.

However, the U.S. Circuit Court of Appeals took most of that time to decide on a secondary issue, and even though the collection program is about to expire and be replaced by a new set of rules, Leon said enough is enough.

Leon said the plaintiffs are likely to succeed on the merits of their Fourth Amendment claim at a coming trial.

The judge noted the importance of protecting the Fourth Amendment and concluded he could not “allow the government to trump the Constitution merely because it suits the exigencies of the moment.”

He continued, “To be sure, the very purpose of the Fourth Amendment would be undermined were this court to defer to Congress’s determination that individual liberty should be sacrificed to better combat today’s evil.”

In the program, the NSA monitors the telephone numbers used in calls in an effort to identify potential national security threats.

Leon pointed out that “although the daily bulk collection, storage and analysis of telephony metadata is not expressly authorized” by the law, the government went ahead with the program.

“This is one of the most significant cases in the history of litigation against the government,” Klayman said.

“Never before in American history have people been subjected to such egregious violations of their constitutional rights,” he said. “Thank God that there are judges like Leon who will stand up for the American people. Without this, revolution is almost assured if more judges do not start to do their job, like Leon, and protect the citizenry from government tyranny.”

In Leon’s original injunction, he called the program “almost Orwellian.”

Klayman originally sued the NSA, Barack Obama, then-Attorney General Eric Holder and a number of other federal officials. Other defendants include NSA chief Keith Alexander, U.S. Foreign Intelligence Surveillance Court Judge Roger Vinson, Director of National Intelligence James Clapper, CIA chief John Brennan, FBI chief James Comey, the Department of Justice, the CIA and the FBI.

The data that the NSA collects, they explained in a brief, “reveals political affiliation, religious practices and peoples’ most intimate associations.”

“It reveals who calls a suicide prevention line and who calls their elected official; who calls the local tea-party office and who calls Planned Parenthood.”

The groups’ brief said “the relevant fact for whether an expectation of privacy exists is that the comprehensive telephone records the government collects – not just the records of a few calls over a few days but all of a person’s calls over many years – reveals highly personal information about the person and her life.”